SUMMARY: This final rule amends the Occupational Safety and Health
Administration's (OSHA) regulations for federally-funded onsite safety
and health consultation visits to: provide for greater employee
involvement in site visits; require that employees be informed of the
results of these visits; provide for the confidential treatment of
information concerning workplace consultation visits; and update the
procedures for conducting consultation visits.

EFFECTIVE DATE: This final rule will become effective on December 26,
2000.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates
for receipt of petitions for review of the regulation the Associate
Solicitor for Occupational Safety and Health, Office of the Solicitor,
Room S-4004, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210.

The Occupational Safety and Health Administration (OSHA), under
cooperative agreements with agencies in 48 states, the District of
Columbia, and several U.S. territories, administers and provides
federal funding for an onsite consultation program which makes trained
health and safety personnel available at an employer's request and at
no cost to the employer to conduct worksite visits to identify
occupational hazards and provide advice on compliance with OSHA
regulations and standards. (In the remaining 2 states and 2
territories, onsite consultation services are provided to small
employers in the private sector as part of an OSHA-approved state plan
funded by federal grants under section 23(g) of the Occupational Safety
and Health (OSH) Act, rather than under cooperative agreements.)
Priority in providing onsite consultation visits is accorded to smaller
employers in more hazardous industries. (Various OSHA directives
currently specify that priority for consultation services be given to
employers having not more than 250 workers at the site receiving the
consultation, and not more than 500 workers nationwide.) The
consultation program was first authorized by Congressional
appropriations action in 1974.

Section 21(c) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 670(c)) directs the Secretary of Labor to establish programs for
the education and training of employers and employees in the
recognition, avoidance, and prevention of unsafe or unhealthful working
conditions in employments covered by the Act. The need for a greater
understanding by employers of their obligations under the Federal or
State OSH Acts has been widely acknowledged. The interpretation of
complex standards and the recognition of hazards in the workplace can
be difficult for employers. Small business employers who may lack the
financial resources to utilize private consultants may face even
greater difficulty in understanding their obligations under the Act.

Onsite consultation services can be provided without triggering the
enforcement mechanisms of the Act. Federally funded onsite consultation
was originally conducted only by states operating plans approved under
section 18 of the Act. In response to the demand for consultation in
other states, Part 1908 was first promulgated on May 20, 1975, (40 FR
21935) to authorize federal funding of onsite consultation activity by
States without approved State Plans through cooperative agreements
entered into under the authority of sections 21(c) and 7(c)(1) of the
Act. Part 1908 was subsequently amended on August 16, 1977 (42 FR
41386) to clarify a number of provisions which had been subject to
misinterpretation, as well as to increase the level of Federal funding
to ninety percent, a level that was considered necessary to provide a
strong incentive for States to enter the program. The rule was again
amended on June 19, 1984 (49 FR 25082), to clarify various provisions
to reflect the experience gained after 1977. The 1984 amendment also
contained provisions allowing OSHA to grant inspection exemptions to
employers who meet certain requirements.

On July 16, 1998, President Clinton signed into law the
Occupational Safety and Health Administration Compliance Assistance
Authorization Act (CAAA), Public Law 105-197, which codifies this
important OSHA program as a new subsection 21(d) of the Occupational
Safety and Health Act. The regulations at 29 CFR part 1908 remain the
rules under which the OSHA onsite consultation program is administered
and provide, among other things, rules and procedures for state
consultants performing worksite visits. On July 2, 1999 (64 FR 35972),
OSHA published a document in the Federal Register requesting public
comments on proposed changes to 29 CFR part 1908. The proposed rule was
intended to implement the CAAA, to meet OSHA's goals for the
consultation programs as established in the National Performance Review
(NPR) of 1995, and to reflect current consultation policies and
procedures. The proposal presented a number of new issues including:
(a) Employees' right to participate in the consultation visit; (b)
employees' right to be notified of hazards identified; and (c) OSHA's
use of the consultants' report during an enforcement proceeding. OSHA
received views and comments from state consultation service providers,
OSHCON (the association representing state consultation service
providers), employers, organizations representing employer groups,
labor unions, members of congress and interested members of the public
during a 90-day public comment period that ended on September 30, 1999.
Most comments focused on the issues delineated above.

II. Summary and Explanation of Final Rule

This section includes an analysis of the public record and the
policy considerations underlying the decision on various provisions of
the rule. In today's final rule, OSHA has made various changes to the
proposed language. Editorial and grammatical corrections are made
throughout the final rule, which do not alter the specific intent or
purpose of the proposal's requirements. In most instances, these minor
changes are not discussed in the preamble. The preamble focuses on
substantive issues raised in the proposal.

OSHA has cited public comments in the record by identifying
exhibits parenthetically. The comments are included in Exhibit 2.
Comment numbers identifying a particular commenter follow the exhibit
number. If more than one comment is cited, the comment numbers are
separated by commas. For example (Ex. 2: 2, 3, 4) means Exhibit 2: comment numbers
2, 3, and 4. The names and exhibit numbers of commenters are listed in
Attachment I.

Section 1908.1 Purpose and scope.

This section describes in general terms the purpose of the
cooperative agreements between OSHA and state governments to provide
consultation services to employers. In its present form, the rule cites
sections 7(c)(1) and 21(c) of the Occupational Safety and Health Act of
1970 as its source of authority. The rule currently does not explain
the obligation of states, operating plans with consultation program
components under section 18(b) of the Act, to operate consultation
programs that are "at least as effective as" the 7(c)(1) programs.

The proposed rule revised the section to establish section 21(d),
the Occupational Safety and Health Administration Compliance Assistance
Authorization Act of 1998, as the primary source of authority for this
program. The proposal also clarified the obligation of the State plans
to establish consultation programs that are "at least as effective
as" the 21(d) consultation programs. There were no objections to these
proposals. The proposed language is retained in the final rule without
change.

Section 1908.2 Definitions

This section contains definitions of terms used throughout the
rule. The proposed rule included revised definitions of "Employee",
"Employer", "Other-than-serious hazards", and "Serious-hazards",
and new definitions of "List of Hazards", "Programmed inspection",
"Programmed inspection schedule", and "Recognition and exemption
program" for the purpose of part 1908.

There were no comments on the definitions of "Employee",
"Employer", "Other-than-serious hazards", "Serious-hazards",
"Programmed inspection", "Programmed inspection schedule", and
"Recognition and exemption program". Those definitions are retained
in the final rule without change.

Two state agencies commented that the definition of "List of
Hazards" needs to be further clarified with regard to what is to be
included in the list, and whether there is a new requirement to verify
the correction of other-than-serious hazards that are posted. The
requirement to post the "List of Hazards" is intended as a means of
informing employees about hazards in the workplace. OSHA does not
intend to require the consultation projects to verify correction of
other-than-serious hazards. Some commenters noted that requiring the
employer to post the "List of Hazards," including the recommended
corrective action, would be counter-productive because of the volume
and detail of a consultant's recommended corrective action. Others
pointed out that the employer is not bound exclusively to the
consultant's recommended action. OSHA agrees that the objective of
informing employees about hazards identified by the consultant can be
achieved without posting the recommended corrective action, and without
requiring the posting of other-than-serious hazards. The definition of
"List of Hazards" in the final rule, therefore, does not include the
recommended corrective action and other-than-serious hazards. The final
rule will require the employer to make the consultant's recommended
corrective action and information on other-than-serious hazards
available at the worksite for examination by affected employees or
their representatives.

With respect to the definition of "recognition and exemption
program," one commenter noted that the recognition and exemption
program should recognize and grant exemptions to sites with "good
basic" safety and health programs rather than "exemplary" programs.
(Ex. 2:13.) Two state agencies commented that the "recognition and
exemption program should recognize "exemplary" program(s) and not
"basic" programs as some have suggested." (Ex. 2: 9, 134.) The term
"exemplary" programs, as used in this rule, refers to programs that
meet the requirements of the agency's Safety and Health Management
Guidelines of 1989 (42 FR 3904) with respect to hazards covered by the
Act. OSHA believes that the requirements of the 1989 guidelines can be
met by every employer in the nation. For those genuinely working to
achieve recognition and exemption status, the rule also permits the
deferral of inspections. The definition is retained without change in
the final rule.

Section 1908.3 Eligibility and Funding

This section establishes the criteria for state eligibility to
enter into a cooperative agreement with OSHA and sets forth the terms
of reimbursement under the agreement. The section was amended to
clarify that a state operating an approved section 18(b) state plan
cannot receive funding for consultation programs under section 21(d)
while continuing to receive funding for the same consultation program
under section 23(g) of the Act. One commenter stated that the proposed
rule is inconsistent with the CAAA because it will deny training and
education funds to section 18(b) state plans with consultation programs
funded under section 23(g). (Ex. 2:17.) This rule does not change the
existing policy on funding of consultation programs but merely
clarifies the policy. All State-Plan states will continue to be
eligible for training and education program funding independent of
funding for onsite consultation programs. The final rule retains the
proposed language without change.

1908.5 Requests and Scheduling for Onsite Consultation

This section includes requirements for state consultation agencies
to encourage employers to request onsite consultation visits and to
publicize the availability and scope of services provided. The proposed
language changes the last sentence in § 1908.5(a)(3) to reflect the
change from Inspection Exemption Through Consultation (IETC) to the
proposed recognition and exemption program, implemented as the Safety
and Health Achievement Recognition Program (SHARP) in federal
enforcement states. Even though no other changes were proposed to the
rest of § 1908.5(a)(3), one commenter stated that the language in
the section was clearer in the existing rule. (Ex. 2:124.) Another
commenter noted that the rights and obligations of the employer are
explained in promotional materials, public presentations, and in the
opening conference and need no further emphasis when the request is
received. (Ex. 2:165.) OSHA understands the need of the various states
to tailor their promotional and outreach materials to their unique
markets, and that these promotional and outreach material may vary from
state to state. It is, however, essential that regardless of the state
providing the consultation service certain pertinent information must
be provided to all employers who request a consultation visit. To that
end, § 1908.5(a)(3) outlines the required information. When this
rule becomes effective, OSHA expects the promotional materials
developed by the states to include information on the exemption and
recognition program rather than the inspection exemption through
consultation.

Section 1908.5(b) includes a proposal to require consultation
projects to inform employers about the requirement to post the "List
of Hazards" when taking requests for consultation services. One state
agency expressed the opinion that explaining the requirement to post the
"List of Hazards" when taking such a request will intimidate the
employer. (Ex. 2:165.) OSHA does not believe that a thorough
explanation of the reason for requiring the posting of the "List of
Hazards," together with an explanation of the benefits of the
consultation service, including the benefits of "consultation in
progress" at § 1908.7(b)(1), will intimidate an employer who is
willing to work in good faith with the consultation project. The
following change is made in the final rule to allow the states more
flexibility in explaining the requirement to post the "List of
Hazards" to an employer. The last sentence originally proposed to be
added to § 1908.5(b) (requiring the states to explain the employer's
obligation to post the "List of Hazards" during the opening
conference) is added to the end of the cautionary statements in
§ 1908.5(a)(3).

Section 1908.6 Conduct of a Visit

This section establishes the rules for the actual conduct of a
consultation visit. The proposed rule was designed to change this
section in two ways. Section 1908.6(c)(2) provides for employee
participation in the walkaround phase of the visit. The section
provides that, at unionized sites, a duly appointed employee
representative will be given the opportunity to accompany the
consultant and the employer's representative in the walkaround phase of
the visit. The section provides further that, at all other sites, the
consultant will confer with a reasonable number of employees. The
proposal codifies the current policy on employee participation as found
in the Consultation Policies and Procedures Manual (CPPM) (TED 3.5B, p.
VI-9, 1996). Several commenters noted that, even though they presently
allow their employees to participate in the process, they are opposed
to OSHA making employee participation a requirement for providing the
consultative service. Many of them asserted that employee participation
must be left to the discretion of the employer. (Ex. 2: 50, 54, 58, 62,
68, 79, 100, 101, 106, 110, 171,183, 184, 191, 197, and 203.) Other
commenters objected to this change, noting that the current rule allows
for employee participation, and that the CPPM adequately addresses the
substance of the proposed rule. (Ex. 2: 17, 73, 121, 124, 132, 142,
147, 155.) Several employers and state agencies, however, agreed with
the change and many noted that this is already the practice. (Ex. 2: 3,
10, 12, 15, 25, 77, 83, 85, 86, 107, 133, 145, 158, 159, 162, 189, and
201.) OSHA believes that because a consultation visit is ultimately
intended to benefit employees (by assisting the employer to provide a
workplace free of recognized hazards,) affected employees and/or their
representatives must be provided the opportunity to participate in the
process. This position is consistent with legislative history of the
Occupational Safety and Health Compliance Assistance Authorization Act
of 1998. The final rule retains the proposed language without change.

The meaning of the term "employee representative" as used in the
proposed rule caused concern among some commenters. They were concerned
that allowing participation by undefined employee representatives would
unduly burden small employers, and that there are situations where such
employee participation may not be necessary. (Ex. 2: 19, 20, 31, 32,
42, 46, 51, 66, 67, 72, 80, 119, 125, and 174.) Others completely
objected to the section on the grounds that it had an enforcement tone
and would reduce employers' willingness to participate in the program.
(Ex. 2: 34, 49, 111, 130, 136, 146, and 190.) One commenter wanted OSHA
to clarify the meaning and applicability of the section. (Ex. 2: 8.)
Therefore, a definition of "employee representative" has been added
to the final rule to clarify that, as used in this rule, the term
refers only to duly appointed representatives of employees at unionized
sites. At all other sites, the current practice where the consultant
confers with a reasonable number of employees will continue.

Despite this existing practice, there were explicit and implicit
comments that OSHA's prescription for employee participation is a
"one-size-fits-all" solution, while others observed that OSHA gives
no indication of the meaning of "reasonable number of employees".
(Ex. 2: 152, 192 and 197.) The proposed rule leaves the details of
employee participation at non-unionized sites to the discretion of the
consultant. The consultant determines based on the unique site
conditions when, how and how frequently to confer with employees. This
rule does not preempt any existing state rule that provides for
comparable employee participation.

To remove any confusion regarding the role of employees in the
consultation visit, the phrase "In addition" is added to the final
rule at § 1908.6(c)(2)(i) to clearly indicate that the requirements
in the whole of § 1908.6(c)(2) are in addition to the requirements
in § 1908.6(c)(1). Further, the phrase "or if the employee
representative declines the offer to participate" is added to
§ 1908.6(c)(2)(ii) of the final rule to allow the consultant the
flexibility of proceeding where the duly appointed employee
representative voluntarily declines the offer to participate in the
visit. On a related matter, one commenter wanted a clarification on
what happens if the employer refuses to allow employee participation.
(Ex. 2: 188.) The CPPM (OSHA Instruction TED 3.5A 1996, p IV-3)
provides clearly that, at unionized sites, the employer must afford the
employee representative an opportunity to participate in the walkaround
phase as well as the opening and closing conferences of the visit. The
same section of the CPPM reserves the right of the consultant to confer
privately with employees. The final rule continues this policy. The
consultation visit will not proceed if the employer refuses to allow
employee participation as prescribed in the final rule and the CPPM.

The proposal in § 1908.6(d) provided for participation by
employee representatives in an opening and closing conference, and for
notification of affected employees of the scope and purpose of the
visit. Some commenters objected to this proposal on the grounds that it
will undermine the right of the employer to control the visit and to
voluntarily determine who participates in the process. (Ex. 2: 79, 100,
111, 120, 146.) Others commented that mandating participation by
employee representatives in the opening and closing conference will
undermine the confidential nature of the process, and that it is
inconsistent with the intent of Pub. L. 105-197. (Ex. 2: 17, 78, 101,
106, 110, 121, 169, 184.) Another group of commenters objected to
separate conferences on the grounds that it could be divisive and may
put the consultant in an "untenable position as a labor advocate".
(Ex. 2: 9, 77, 86, 134, 147, 155.) There were also commenters who noted
that allowing employee representatives to participate in the opening
and closing conference would be time consuming, burdensome, costly to
employers, and reduce the level of participation. (Ex. 2: 89, 97, 119,
121, 181.) Some commenters were supportive of the proposal and
applauded OSHA's effort to encourage the inclusion of employees
represented by organized labor in the consultative process. (Ex. 2: 83,
107, 122, 133, 137, 145, 158, 159, 162, 189, 201, 205.) OSHA notes that
the proposal to allow employee representatives in the opening and
closing conference only affects unionized sites, which constitute only
about 14% of all sites served by the consultation projects. The
provision permitting a request for a separate opening and closing conference is equally available to the employer and
the employee representative. Requests for separate opening and closing
conferences may or may not reflect divisions between labor and
management. Be that as it may, the consultant's role is to identify the
hazards in the workplace, to advise affected employees about those
hazards, to advise the employer on methods for correcting the hazards,
and to assist the employer in establishing or improving safety and
health programs. That function does not require the consultant to take
sides in any internal disputes.

The opening conference provides an opportunity for the consultant
to explain the purpose and scope of the visit, to emphasize the
obligations of the employer, and to reaffirm the rights and the
authority of the employer to control the visit by expanding, limiting
or terminating the visit at anytime. The closing conference provides an
opportunity for the consultant to discuss findings, to advise the
employer of interim protective methods, and to establish correction due
dates. OSHA understands that there may be matters that the employer may
want to discuss privately. OSHA intends to issue a guideline on matters
that should be addressed privately with the employer, at the employer's
request. Such matters will include the critique of workplace management
systems for occupational safety and health.

Some commenters expressed concern over the ability of employees to
speak freely with the consultant in the presence of the employer
without fear of retaliation. One commenter wanted the rule to expressly
allow the consultant to confer privately with the employee, and raised
the question of anti-discrimination protection and walkaround pay. (Ex.
2: 137.) The final rule retains § 1908.6(c)(1) of the present rule,
which specifies that the consultant retains the right to confer
individually with an employee if the consultant so wishes. Further,
OSHA believes that any discrimination issue that may arise out of the
consultation process is adequately addressed by section 11(c) of the
Occupational Safety and Health Act of 1970, as implemented through 29
CFR part 1977, and needs no further emphasis in this rule. With regard
to walkaround pay, OSHA believes that this issue should be resolved by
the employer and the union when the request is made.

Regarding the requirement for the consultant to notify affected
employees of the visit, one commenter noted that § 1908.6(d)(1) is
vague, and that its implementation could be problematic in some cases.
(Ex. 2: 181.) The section is intended to encourage the consultant to
use his or her best judgment in informing as many employees as possible
of the purpose of the visit, and to increase interaction with employees
covered by the scope of the visit. The final rule is changed to clarify
that the provision is not intended to require the states to provide
notice of the visit to all affected employees, but rather to inform
employees with whom the consultant confers, of the visit's purpose.

Concerning the proposal at § 1908.6(d)(2), one commenter noted
that the section should be changed to include the employee
representative in the discussion of the relationship between onsite
consultation and OSHA enforcement activity. (Ex. 2: 162.) The section
is intended to be a cautionary statement to the employer. The
consultation agreement is between the consultant and the employer, and
imposes no duty on the employee representative. That section of the
final rule therefore directs those cautionary statements exclusively to
the employer. In order to consolidate all the cautionary statements in
one section, the language in § 1908.6(d)(3) is added to
§ 1908.6(d)(2.) Section 1908.6(d)(4) is renumbered as
§ 1908.6(d)(3).

The proposal at § 1908.6(e)(7), which provides that the
consultant will assist the employer in the development of a hazard
correction plan and provides a dispute resolution mechanism for the
consultation project manager, is substantively the same as the language
adopted and published in the Federal Register of June 1984 (49 FR
25094). The only changes to the paragraph was to replace the phrase
"an identified serious hazard exists" with the phrase "a serious
hazard exist" and to replace the word "shall" with "must". A few
commenters, however, noted that the dispute resolution mechanism is an
added burden, and that it gives the consultation program an enforcement
flavor. (Ex. 2: 134, 152.) The intent of the section is to give the
employer an opportunity to discuss any objections to the consultant's
findings, categorization of hazards, or the established correction
period with the consultation project manager. When an employer refuses
to correct a serious hazard, it is eventually referred to OSHA for
enforcement. It is therefore important for the consultation project
manager to provide an informal forum to resolve any disputes or
disagreements. This avenue for resolving disagreements between the
employer and the consultant will become even more important with the
new requirement to post the "List of Hazards".

With respect to the development of the hazard correction plan, some
commenters wanted the section changed to grant employee representatives
the right to participate in developing the hazard correction plan. (Ex.
2: 145, 159, 162, 189, 201.) OSHA agrees that employee participation in
the development of the plan is desirable. Nevertheless, the
responsibility of correcting hazards is solely the employer's. The
consultant is required to assist the employer in developing the plan.
However, the employer does not have to accept the consultant's
assistance, and may choose to develop the plan on his or her own. By
the same token, the employee representative may offer to assist the
employer in developing the hazard correction plan. The employer is,
however, free to accept or decline the offer.

At § 1908.6(e)(8), OSHA proposed to inform employees of hazards
identified by the consultant by requiring the posting of a "List of
Hazards", and by making a copy of the list available to the authorized
employee representative who participates in the visit. Several
commenters opposed the proposal, citing the following objections: (1)
the list could be used adversely against the employer by OSHA,
attorneys, competitors, and disgruntled employees; (2) posting the list
will undermine the voluntary and confidential nature of the process;
and (3) that the requirement is not in line with PL 105-197. (Ex. 2:
34, 98, 106, 110, 123, 124, 141, 154, 157, 171, 184, 188.) Another
group of commenters asserted that employers participating in the
process in good faith should not be forced to advertise hazards in
their workplace. (Ex. 2: 19, 31, 32, 42, 46, 51, 66, 67, 72, 80, 101,
174.) There are several provisions in the final rule that are intended
to assuage the concerns expressed. Section 1908.7(b)(1) will ensure
that the employer is not subjected to OSHA enforcement while working
within the established time frame to correct hazards identified by the
consultant. In addition, the final rule includes language providing
that complaints resulting from the posting of hazards will not result
in enforcement action, as long as the employer is meeting his or her
obligation with respect to interim protection and the correction time
frame. Further, OSHA will require that the "List of Hazards" includes
language that clearly states that the list is not a citation. It will
acknowledge the employer's good faith effort in working cooperatively
and voluntarily with the consultation project to provide a workplace
free of recognized hazards. OSHA believes that the list will serve the intent
of Public Law 105-197 (as reflected in House Report 105-444
accompanying the Act) by providing a means to inform affected employees
and their representatives of hazards in the workplace.

With regards to employer adherence to the posting requirements,
some commenters were concerned that the proposal will be unenforceable.
(Ex. 2: 86, 92, 131, 147.) An employer who agrees to the requirements
for receiving the consultation service but subsequently refuses to post
the "List of Hazards" will be deemed to have unilaterally terminated
the consultation visit. Such an employer will not receive the benefit
of any inspection deferrals, including the protection contained at
§ 1908.7(b)(1), and will be denied participation in the recognition
and exemption program at § 1908.7(b)(4). Some commenters were of the
opinion that the posting requirement entailed verification by
consultants. They noted that verification of posting will be time
consuming and will result in fewer actual consultative visits. (Ex. 2:
86, 89.) One commenter (Ex. 2: 92) stated that it will be impractical
to require verification of posting, while others (Ex. 2: 32, 165) noted
that it should be the responsibility of the employer to inform his or
her employees of hazards in the workplace. While OSHA agrees that it is
the duty of the employer to identify and inform employees of the
hazards in the workplace, OSHA feels that the consultant also has an
obligation to inform employees of identified hazards that could cause
injury, illness, or death. As such, OSHA believes that the "List of
Hazards" is a continuation of the communication between the consultant
and the beneficiaries of the service, and could be the beginning of the
dialogue on workplace safety and health between the employer and his
employees. The employer is responsible for providing additional
information to his employees as needed. On the issue of follow-up
visits, OSHA will not require any additional visits beyond what is
presently required. Requirements to inform employees about hazards are
not, in fact, an entirely new addition to the consultation program. As
indicated in some of the comments received, some states already require
posting or sharing of the report with employees without a detrimental
effect on their program. Furthermore, several employers stated that
they always post and share the consultant's report with their
employees, or that they have no objection to the proposal. (Ex. 2: 3,
10, 11, 49, 52, 83, 107, 125, 136, 158.) In addition, the revised
regulation does not prohibit posting by electronic means. While in most
instances it will be necessary to post a hard copy of the list of
identified hazards in order to provide adequate notice to affected
employees, posting may be by electronic means when the employer
demonstrates that electronic transmission is the employer's normal
means of providing notices to employees; that each employee is equipped
with an electronic communication device; and that electronic posting
will provide notice to each affected employee equivalent to hard-copy
posting at the worksite.

At § 1908.6(h)(2), OSHA proposed to add a provision expressly
designating consultation data which identifies employers who have
requested or received a consultation visit as confidential information.
In a related provision dealing specifically with the consultant's
written report, OSHA proposed a new § 1908.6(g)(2) which would have
provided that consultant's written reports shall not be disclosed by
the state except to the employer for whom it was prepared, or, upon
request, to OSHA for use in any relevant enforcement proceedings. As
discussed below, a provision for non-disclosure of consultation data to
the public is included in today's final rule. Provisions relating to
access to the consultant's report for enforcement however, have been
revised in light of extensive comment received from states and other
participants.

Nondisclosure to the public of consultation data: The final rule at
§ 1908.7(h)(2) allows OSHA to obtain employer specific information
for evaluating the consultation program. As was explained in the
proposed rule, non-enforcement federal OSHA personnel must at times
obtain access to confidential material during the course of evaluating
state consultation programs or rendering program assistance. OSHA has
needed access to such information more frequently in recent years as
the agency has begun to incorporate consultation program information in
federal databases such as the Integrated Management Information System
(IMIS), and as the agency has implemented the program measurement
activity mandated by the Government Performance and Results Act (GPRA).
Federally-collected data includes, for example, worksite-specific
injury and illness data to help measure the effect of the consultation
program on participating employers' injury and illness rates.

Consultation-related information retained by federal OSHA is
generally subject to the federal Freedom of Information Act (FOIA), 5
U.S.C. 552. The FOIA provides that records maintained by federal
agencies must be disclosed to members of the public upon request unless
one of the nine exemptions listed in the act applies. Exemption 4 of
the FOIA exempts from disclosure "commercial or financial information
obtained from a person [that is] privileged or confidential."
Information that relates to an employer's business decision to engage a
consultant, and workplace information reviewed by that consultant
during the visit, would appear to qualify as "commercial" information
as that term has been broadly construed by the courts. Information
collected by consultants under 29 CFR part 1908 is clearly "obtained
by a person" within the meaning of FOIA.

OSHA believes that such information also qualifies as
"confidential", the remaining criterion for non-disclosure under
Exemption 4. Federal court decisions establish that commercial
information voluntarily submitted by a person to the government is
"confidential" if it is the kind of information not customarily made
public by the person from whom it was obtained. Critical Mass Energy
Project v. NRC, 975 F.2d 871 ("Critical Mass III)(D.C. Cir. 1992).
Even if submission of the information were mandatory, the information
would qualify as confidential under Exemption 4 if disclosure would
impair the effectiveness of the government program under which the
information was submitted. Critical Mass Energy Project v. NRC, 931
F.2d 939, 944-45 ("Critical Mass II") (D.C. Cir. 1990).

States and employers who filed comments almost unanimously
predicted a sharp fall off in employer participation if confidentiality
could not be guaranteed, a belief also emphasized in comments by
OSHCON. (Ex. 2: 147.) The American Society of Safety Engineers stated
that in the private sector it would be considered an ethical violation
for a consultant to disclose an employer's identity without his
consent. (Ex. 2: 109.) Most states indicated the material is now
treated as confidential.

OSHA finds that site specific information and data collected by
consultants during the consultation visit generally constitutes
confidential commercial information under FOIA exemption 4, and
qualifies for protection from release to the public. OSHA believes that
the public disclosure provisions of proposed § 1908.6(g) and (h) are
necessary both to protect the confidentiality interests of employers in
confidential commercial information voluntarily provided to the state consultant,
and to avoid the potential damage which widespread disclosure might do
to this voluntary program whose objective is to promote the correction
of workplace hazards by assuring continued participation of employers.
Accordingly, the final rule includes provisions for non-disclosure of
such information. Additionally, although OSHA has revised the wording
of proposed § 1908.6(g) relating to OSHA access, the requirement
that the consultant's written report may be disclosed only to the
employer for whom it was prepared, which reflects the status of these
reports as confidential commercial information not subject to public
disclosure, has been retained in the final rule.

Access to consultant's reports for enforcement purposes: The
proposed § 1908.6(g) would, among other things, have required states
to provide a copy of a consultant's written report to OSHA upon
request, for use in enforcement proceedings to which the information
was relevant. Although the preamble to the proposal stated that the
enforcement cases in which OSHA would seek to obtain these reports have
been and would continue to be extremely rare, the volume of comments in
opposition to this proposal has caused the agency to carefully
reexamine this issue and revise the language of the final rule. A
number of commenters, including state agencies, expressed concern that
the proposal undermines the wall of separation between the consultation
projects and OSHA, and some argued the proposal violates the spirit of
the CAAA. Several commenters worried that the proposal will lead to
decreased usage and ultimate demise of the program (Ex. 2: 13, 39, 92,
188,) and many employers stated they would not use the services of
state consultants if they were not assured of confidentiality. (Ex. 2:
3, 59, 107, 160, 183.) A group of commenters, however, agreed with the
proposal, asserting that it strikes the proper balance between the use
of the service by the employer and the need for employee protection.
(Ex. 2: 25, 133.) Several state agencies proposed that, when necessary,
OSHA should obtain the report from the employer rather than the state.
(Ex. 2: 77, 134, 145, 162, 165, 181, 189.) OSHA shares the concern of
the commenters that the perception of routine access to these reports
for enforcement purposes would adversely affect employer participation
in the consultation program. OSHA recognizes the need to preserve a
careful balance between ensuring effective worker protection and
encouraging employer participation. Accordingly, the final rule has
been revised to further limit and specify situations in which
consultation reports could be used for enforcement purposes. First, the
final rule eliminates a proposed provision of § 1908.6, to which
many states objected, which would have required state consultants or
consultation agencies to furnish written consultation reports to OSHA
"upon request" for enforcement use. Subsection 1908.6(g) of the final
rule has been rephrased to make clear that state consultation agencies
will be required to furnish their written reports to OSHA only as
provided in § 1908.7(a)(3) -- that is, only when the state makes a
referral to enforcement because an employer has failed to correct a
hazard identified by the consultant, or where there is information in
the report to which access must be provided under 29 CFR 1910.1020 or
other applicable OSHA standards or regulations.

Moreover, OSHA has removed from the text of § 1908.6(g)(2) the
broad language which would have given OSHA unlimited access to the
consultant's written report in "enforcement proceedings to which the
information is relevant." The final rule allows OSHA more limited
access. Aside from rare instances in which OSHA will seek a copy of the
report as part of the § 1908.6(f)(4) referral process, the revised
§ 1908.7(c)(3) provides that OSHA may obtain the report from the
employer only where OSHA independently determines there is reason to
believe that the employer has failed to correct hazards identified by a
consultant or created the same hazards again, or has made false
statements to the state or OSHA in connection with participation in the
consultation program. Once an OSHA inspection (or investigation)
independently results in the identification of hazards in the
workplace, the employer and employee interview as well as a review of
documents provided by the employer may yield information that indicates
that the hazard had been previously identified but had not been
corrected by the employer, or that the employer had allowed the hazard
to reoccur.

Related to the concerns about the confidentiality of the
consultants' written report, one commenter expressed concern that the
confidentiality provisions of the proposed rule would conflict with the
access rights of certified collective bargaining representations under
the National Labor Relations Act (NLRA). (Ex. 2:162.) The final rule
places no limitations on disclosure of consultation-related reports or
information by the employer with whom the consultation was performed,
and in no way limits the access rights of an employee organization
under a collective bargaining agreement or the NLRA.

Section 1908.7 Relationship to Enforcement

This section generally provides that the state consultation program
be operated independently of federal and state OSHA enforcement
programs. This principle of independent program administration is
reflected in current and previous versions of 29 CFR part 1908, and is
consistent with section 21(d) of the OSH Act. The proposed changes at
§ 1908.7(a)(3) were intended to clarify the limits of information-
sharing between consultation and enforcement to achieve common program
objectives. OSHA believes that information sharing under
§ 1908.7(a)(3) is critical to ensure that qualified employers are
granted inspection exemptions and deferrals, and that the files of
employers not meeting their obligation are forwarded to OSHA for
enforcement action. The final rule is changed to delete references to
the confidentiality provision in § 1908.6(g)(2) and (h)(2), and to
add the inspection deferral provision under § 1908.7(b)(1).

At § 1908.7(b)(1), OSHA proposed to change the meaning of
consultative visit "in progress". One commenter was concerned that
"in progress" could become open ended and allow excessive correction
due dates. The commenter suggested that a cap of 60 days should be
placed on the duration of consultative visits "in progress". (Ex.
2:6.) OSHA is mindful of the concern expressed by this commenter.
However, OSHA believes that consultation projects are in the best
position to determine reasonable correction due dates and are therefore
better able to establish the cap on consultative visits "in progress"
on a case-by-case basis. OSHA intends through its monitoring and
evaluation of the consultation projects to assist the states in
maintaining a reasonable schedule of "correction due dates". A number
of commenters expressed strong support for the proposed change to the
meaning of the consultation visit "in progress", observing that the
change allows the employer to complete the corrective action as part of
the consultative process. (Ex. 2: 1, 24, 86, 89, 92, 119, 131, 134,
147, 149, 157, 165.) One commenter noted that the proposal does not go
far enough. That commenter wanted consultation "in progress" to extend from
"when a request is received by the Consultation Program through the end
of the correction period, including any approved extensions". The commenter
additionally recommended that language be added to the provision that
permits OSHA, in scheduling compliance inspections, to grant lower priority to
worksites that have completed a consultative visit. (Ex. 2: 77.) One
commenter noted that in his state, consultation in progress begins 10
days before the opening conference and terminates at the end of the
correction due dates. (Ex. 2: 188.) OSHA believes that the language in
§ 1908.7(b)(1) (inspection deferral to sites with consultative visit
pending,) and (b)(4)(i)(A) (inspection deferrals to sites working to
achieve recognition and exemption status,) together with the expanded
meaning of the consultation visit "in progress", provide flexibility
for granting inspection deferrals to employers who are committed to
working with the consultation projects.

The proposal at § 1908.7(b)(4) was intended to provide the
framework for a recognition and exemption program that replaces the
"inspection exemption through consultation". There were two aspects
to the proposal. Section 1908.7(b)(4)(i)(A) was designed to allow OSHA
in exercising its authority to schedule compliance activity to defer
inspections to sites working with the consultation projects to achieve
the recognition and exemption status, while § 1908.7(b)(4)(i)(B)
established the minimum standard for achieving the recognition and
exemption status.

A few commenters wanted a clarification of the use of the word
"may" instead of "shall" in the proposal in section
1908.7(b)(4)(i)(A). (Ex. 2: 9, 13, 34.) Some commenters stated that the
proposal was inconsistent with section 21(d) of the CAAA. OSHA's
experience with the "inspection exemption through consultation"
program cautions against granting mandatory inspection exemptions or
deferrals where the requirement for achieving an acceptable level of
performance is subject to varied interpretations. Further, states
operating their own enforcement programs should have reasonable
flexibility to determine how best to achieve the objective of this
section. OSHA's position is supported by the language at section
21(d)(4) of the CAAA. OSHA will provide guidelines to the States to
ensure uniformity in developing acceptable milestones for inspection
deferrals, and to ensure that states will only grant deferrals to
employers working with the consultation projects to achieve specific
milestones. One commenter objected to the section, noting that the
reference to "effective safety and health program" is OSHA's way of
forcing employers to implement requirements beyond the intent of the
CAAA. (Ex. 2: 17.) The reference to "effective safety and health
program" does not impose requirements beyond the scope of the CAAA.
OSHA notes that the section 21 (d)(4)(C) of the CAAA reflects the
framework of an effective safety and health program. These criteria are
further described in OSHA's voluntary Safety and Health Program
Management Guidelines, which was published in 1989 to help employers
establish and maintain management systems to protect their workers.
OSHA's experience with the Safety and Health Achievement Recognition
Program (SHARP) and with the Voluntary Protection Program (VPP) has
shown that the guidelines can be implemented successfully by employers
regardless of size. OSHA believes that the criteria set forth in
§ 1908.7(b)(4)(i)(B), including the "safety and health program"
requirement, are needed to demonstrate that type of commitment and
ensure the continued protection of employees' safety and health even
with a lower level of inspection activity. It is important to note that
in addition to granting inspection exemptions to employers with
exemplary safety and health programs, this section also contains
provisions allowing OSHA to grant inspection deferrals to employers
working towards an effective safety and health program with respect to
hazards covered by the Act.

Several commenters expressed their support for the recognition and
inspection exemption provision at § 1908.7(b)(4)(i)(B). (Ex. 2: 1,
50, 54, 73, 119, 134, 164.) A few states operating their own
enforcement programs indicated their satisfaction with the section,
noting that it would allow them the flexibility of adopting and
implementing their own program. (Ex. 2: 1, 9, 137.) One commenter
objected to the requirement that states operating their own enforcement
adopt an equivalent "recognition and exemption" program. (Ex. 2: 25.)
OSHA believes that a "recognition and exemption" program achieves
multiple purposes, two of which are to encourage employers to work
towards voluntary compliance with the requirements of the OSH Act and
to allow enforcement programs to strategically focus their resources.
OSHA believes that all employers should have the opportunity to
showcase their excellence, to be recognized for their achievement, and
to be exempted from inspections where appropriate. The requirement of
this section is therefore maintained without change in the final rule.

Under § 1908.7(c)(3), the employer is not required to provide a
copy of the state consultant's report to a compliance officer. As noted
in the discussion on confidentiality of the consultant's written report
(§ 1908.6(g)(2),) several states urged that when needed the report
should be obtained from the employer and not from the project. One
state agency, while asserting that states should be allowed to keep the
consultant's written report confidential, recommended that the current
confidentiality rule be maintained, and that section 1908.7(c)(3)
should be deleted to allow OSHA to obtain the report directly from the
employer when necessary. (Ex. 2: 165.) As previously mentioned in the
discussion under confidentiality of the consultants' written report,
several state agencies were similarly inclined. Because this section of
the rule is very important in furthering OSHA's policy of not allowing
compliance officers to make initial requests for the consultant's
written report and not allowing the use of the report as a means of
identifying hazards upon which to focus inspection activity, the final
rule includes a revised 7(c)(3). The new rule now provides that while
employers generally will not be required to provide a copy of the
consultant's report to the compliance officer during a subsequent
enforcement visit, OSHA may obtain the report from the employer when
OSHA independently determines there is reason to believe that the
employer failed to correct serious hazards identified during the course
of a consultation visit; created the same hazard again; or made false
statements to the state or OSHA in connection with participation in the
consultation program.

III. Final Economic Analysis

The OSHA onsite consultation program is entirely voluntary both for
employers who seek this free service and for states which elect to
provide it. Some of the new procedures codified in today's final rule
may add incrementally to the time or cost incurred in providing OSHA-
funded consultation services, but OSHA believes that any additional
demand on resources will be more than offset by the benefits of
employee participation, and will not have any significant measurable
economic impact either on employers or state consultation agencies. The
provision that consultation visits include an opportunity for employee
participation is unlikely to add significantly to the time spent by state consultants
in conducting their visits. OSHA's consultation program directive has
for many years required an opportunity for walkaround participation by
the authorized representative in unionized facilities which are
undergoing a consultation visit. A review of our Integrated Management
Information System (IMIS) data indicates that in fiscal year 1998,
there was some form of employee participation in all consultation
visits. The IMIS data indicate that a majority of visits included some
degree of employee participation in the walkaround, and many employers
have voluntarily allowed participation including opening and closing
conferences, walkaround, and employee interviews.

The requirements included in these revisions to part 1908 are a
codification of what already exists in practice and will ensure that
employees are afforded an opportunity to participate in all aspects of
the consultation visit. Employee participation will produce heightened
awareness by the workforce and will result in a positive contribution
to ensure a safer and healthier workplace. OSHA believes that the
economic cost to employers resulting from employee involvement in
consultation visits is minimal, and in any event employers receive
these consultative services free of charge, and no employer is required
to undergo a consultation visit. Similarly, OSHA believes that the
final rule's provision requiring notification of employees of hazards
identified during the consultation visit (i.e. posting the list of
serious hazards, requiring the employer to make information on
corrective actions and other-than-serious hazards available to affected
employees and employee representatives) will increase the
responsibilities of participating employers only slightly. This cost
however, is more than offset by the value of greater employee
participation in the consultation process and enhanced employee
awareness.

Finally, provisions of the final rule dealing with the availability
of the consultant's written report for enforcement purposes have been
modified from those in the proposal in response to numerous state
comments that unrestricted availability of this information to
compliance officers would discourage employers from requesting
consultation visits. OSHA believes that continued employer
participation is essential to the success of this program. The agency
has formulated a final rule which balances confidentiality of
consultation visits with the ultimate objective of ensuring the
correction of workplace hazards.

IV. Executive Order 12866

In terms of economic impact, the rule proposed today does not
constitute an economically significant regulation within the meaning of
Executive Order 12866, because it does not have an annual effect on the
economy of $100 million or more; materially affect any sector of the
economy; interfere with the programs of other agencies; materially
affect the budgetary impact of grant or entitlement programs; nor
result in other adverse effects of the kind specified in the Executive
Order. However, it is deemed to be a significant regulation because it
raises novel legal and policy issues, and has therefore been reviewed
and approved by OMB under Executive Order 12866.

V. Regulatory Flexibility Act Certification

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), the Assistant Secretary hereby certifies that the final rule
will not have a significant economic impact on a substantial number of
small entities. Participation in the consultation program both by
states and employers is entirely voluntary. The state agencies which
have elected to furnish onsite consultation services under cooperative
agreements with OSHA are not covered entities under the RFA. Since the
consultation program is historically targeted to small, high-hazard
workplaces, employers affected by the rule would tend to include a
substantial number of small entities but, as indicated in the foregoing
discussion of regulatory impacts, the final rule should have virtually
no measurable economic impact on employers.

VI. Paperwork Reduction Act

This final rule contains collection of information requirements
which are identical to those in the existing consultation agreement
regulations, except that OSHA is adding a new requirement for the
states to generate and transmit a "List of Hazards" identified during
the visit to the employer, and for the employer to post the list. Under
the Paperwork Reduction Act of 1995, all collection of information
requirements must be submitted to OMB for approval. The existing
requirements for collection of information are approved by OMB under
control number 1218-0110. As a first step in its review of the rule
being issued today, OSHA published a request for public comment on
information collection in the Federal Register (63 FR 67702) on
December 8, 1998. That request included additional collections
anticipated with the revision of this rule. OSHA received no comments
on existing and the proposed information collection. OSHA has submitted
a request to OMB for revision of the currently approved collection to
reflect the paperwork requirements imposed by this final rule.

VII. Federalism

Executive Order 13132, "Federalism" (64 FR 43255; August 10,
1999,) sets forth fundamental federalism principles, federalism
policymaking criteria, and provides for consultation by federal
agencies with state or local governments when policies are being
formulated which potentially affect them. The revisions to 29 CFR part
1908 were issued as a proposed rule on July 2, 1999, prior to the
effective date of this Executive Order, and accordingly the specific
intergovernmental consultation process provided under this Executive
Order was not conducted. However, as discussed below, OSHA has engaged
in extensive discussion of the proposed rule with affected state
agencies, and has incorporated many of the concerns expressed by
affected states in the language of the final rule issued today.

Federal OSHA meets regularly with representatives of state-operated
onsite consultation programs, both individually and at meetings of the
National Association of Occupational Safety and Health Consultation
Programs (OSHCON). OSHA additionally has established a Consultation
Steering Committee on which both OSHA and the states are represented.
OSHA also maintains extensive and frequent communications with its
state plan partner agencies, both individual states and through the
Occupational Safety and Health State Plan Association (OSHSPA), the
association of state plan states. The revisions to part 1908 have been
discussed with all affected states via OSHCON, the Consultation
Steering Committee and the OSHSPA, and many state comments are already
reflected in the proposal being issued today.

OSHA has reviewed the revisions to part 1908 and finds them to be
consistent with the policymaking criteria outlined in Executive Order
13132. It should be noted that cooperative agreements pursuant to
section 21 of the OSH Act, and state plans submitted and approved under
section 18 of the Act, are entirely voluntary federal programs which do
not involve imposition of an intergovernmental mandate and accordingly
are not covered by the Unfunded Mandates Reform Act, see 2 U.S.C. 1502,
658(5). The designated federalism official for the Department of Labor
has certified that OSHA has complied with the requirements of Executive
Order 13132 for these revisions to 29 CFR part 1908.

VIII. Authority

This document was prepared under the direction of Charles N.
Jeffress, Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under sections 7(c), 8, and 21(d) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 656, 657, 670)
and Secretary of Labor's Order No. 6-96 (62 FR 111, January 2, 1997).

2. Section 1908.1 is amended by revising paragraphs (a) and (c) to
read as follows:

§ 1908.1 Purpose and scope.

(a) This part contains requirements for Cooperative Agreements
between states and the Federal Occupational Safety and Health
Administration (OSHA) under sections 21(c) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.) and section 21(d), the
Occupational Safety and Health Administration Compliance Assistance
Authorization Act of 1998 (which amends the Occupational Safety and
Health Act,) under which OSHA will utilize state personnel to provide
consultative services to employers. Priority in scheduling such
consultation visits must be assigned to requests received from small
businesses which are in higher hazard industries or have the most
hazardous conditions at issue in the request. Consultation programs
operated under the authority of a state plan approved under Section 18
of the Act (and funded under Section 23(g), rather than under a
Cooperative Agreement) which provide consultative services to private
sector employers, must be "at least as effective as" the section
21(d) Cooperative Agreement programs established by this part. The
service will be made available at no cost to employers to assist them
in establishing effective occupational safety and health programs for
providing employment and places of employment which are safe and
healthful. The overall goal is to prevent the occurrence of injuries
and illnesses which may result from exposure to hazardous workplace
conditions and from hazardous work practices. The principal assistance
will be provided at the employer's worksite, but off-site assistance
may also be provided by telephone and correspondence and at locations
other than the employer's worksite, such as the consultation project
offices. At the worksite, the consultant will, within the scope of the
employer's request, evaluate the employer's program for providing
employment and a place of employment which is safe and healthful, as
well as identify specific hazards in the workplace, and will provide
appropriate advice and assistance in establishing or improving the
employer's safety and health program and in correcting any hazardous
conditions identified.

* * * * *

(c) States operating approved Plans under section 18 of the Act
shall, in accord with section 18(b), establish enforcement policies
applicable to the safety and health issues covered by the State Plan
which are at least as effective as the enforcement policies established
by this part, including a recognition and exemption program.

3. Section 1908.2 is amended by revising the definitions of
"Employee", "Employer", "Other-than-serious hazard", and
"Serious-hazard", and by adding, in alphabetical order, the
definitions of "Employee representative", "List of Hazards",
"Programmed inspection", "Programmed inspection schedule", and
"Recognition and exemption program" to read as follows:

§ 1908.2 Definitions.

* * * * *

Employee means an employee of an employer who is employed in the
business of that employer which affects interstate commerce.

Employee representative, as used in the OSHA consultation program
under this part, means the authorized representative of employees at a
site where there is a recognized labor organization representing
employees.

Employer means a person engaged in a business who has employees,
but does not include the United States (not including the United States
Postal Service,) or any state or political subdivision of a state.

* * * * *

List of Hazards means a list of all serious hazards that are
identified by the consultant and the correction due dates agreed upon
by the employer and the consultant. Serious hazards include hazards
addressed under section 5(a)(1) of the OSH Act and recordkeeping
requirements classified as serious. The List of Hazards will accompany
the consultant's written report but is separate from the written report
to the employer.

* * * * *

Other-than-serious hazard means any condition or practice which
would be classified as an other-than-serious violation of applicable
federal or state statutes, regulations or standards, based on criteria
contained in the current OSHA field instructions or approved State Plan
counterpart.

Programmed inspection means OSHA worksite inspections which are
scheduled based upon objective or neutral criteria. These inspections
do not include imminent danger, fatality/catastrophe, and formal
complaints.

Programmed inspection schedule means OSHA inspections scheduled in
accordance with criteria contained in the current OSHA field
instructions or approved State Plan counterpart.

* * * * *

Recognition and exemption program means an achievement recognition
program of the OSHA consultation services which recognizes small
employers who operate, at a particular worksite, an exemplary program
that results in the immediate and long term prevention of job related
injuries and illnesses.

Serious hazard means any condition or practice which would be
classified as a serious violation of applicable federal or state
statutes, regulations or standards, based on criteria contained in the
current OSHA field instructions or approved State Plan counterpart,
except that the element of employer knowledge shall not be considered.

* * * * *

4. Section 1908.3 is amended by revising paragraph (a) to read as
follows:

§ 1908.3 Eligibility and funding.

(a) State eligibility. Any state may enter into an agreement with
the Assistant Secretary to perform consultation for private sector
employers; except that a state having a plan approved under section 18
of the Act is eligible to participate in the program only if that Plan
does not include provisions for federally funded consultation to
private sector employers as a part of its plan.

* * * * *

5. Section 1908.5 is amended by revising paragraphs (a)(3) and
(b)(1) to read as follows:

§ 1908.5 Requests and scheduling for onsite consultation.

(a) * * *

(3) Scope of service. In its publicity for the program, in response
to any inquiry, and before an employer's request for a consultative
visit may be accepted, the state shall clearly explain that the service
is provided at no cost to an employer with federal and state funds for
the purpose of assisting the employer in establishing and maintaining
effective programs for providing safe and healthful places of
employment for employees, in accord with the requirements of the
applicable state or federal laws and regulations. The state shall
explain that while utilizing this service, an employer remains under a
statutory obligation to provide safe and healthful work and working
conditions for employees. In addition, while the identification of
hazards by a consultant will not mandate the issuance of citations or
penalties, the employer is required to take necessary action to
eliminate employee exposure to a hazard which in the judgment of the
consultant represents an imminent danger to employees, and to take
action to correct within a reasonable time any serious hazards that are
identified. The state shall emphasize, however, that the discovery of
such a hazard will not initiate any enforcement activity, and that
referral will not take place, unless the employer fails to eliminate
the identified hazard within the established time frame. The state
shall also explain the requirements for participation in the
recognition and exemption program as set forth in § 1908.7(b)(4),
and shall ensure that the employer understands his or her obligation to
post the List of Hazards accompanying the consultant's written report.

(b) Employer requests. (1) An onsite consultative visit will be
provided only at the request of the employer, and shall not result from
the enforcement of any right of entry under state law.

* * * * *

6. Section 1908.6 is amended by:

a. Revising paragraphs (b), (c)(2), (d), (e)(7), (e)(8), and
(f)(2);

b. Redesignating the text of paragraph (g) following the paragraph
heading as paragraph (g)(1);

c. Redesignating the text of paragraph (h) following the paragraph
heading as paragraph (h)(1); and

d. Adding new paragraphs (g)(2) and (h)(2).

The revisions and additions read as follows:

§ 1908.6 Conduct of a visit.

* * * * *

(b) Structured format. An initial onsite consultative visit will
consist of an opening conference, an examination of those aspects of
the employer's safety and health program which relate to the scope of
the visit, a walkthrough of the workplace, and a closing conference. An
initial visit may include training and education for employers and
employees, if the need for such training and education is revealed by
the walkthrough of the workplace and the examination of the employer's
safety and health program, and if the employer so requests. The visit
shall be followed by a written report to the employer. Additional
visits may be conducted at the employer's request to provide needed
education and training, assistance with the employer's safety and
health program, technical assistance in the correction of hazards, or
as necessary to verify the correction of serious hazards identified
during previous visits. A compliance inspection may in some cases be
the basis for a visit limited to education and training, assistance
with the employer's safety and health program, or technical assistance
in the correction of hazards.

(c) * * *

(2)(i) In addition, an employee representative of affected
employees must be afforded an opportunity to accompany the consultant
and the employer's representative during the physical inspection of the
workplace. The consultant may permit additional employees (such as
representatives of a joint safety and health committee, if one exists
at the worksite) to participate in the walkaround, where the consultant
determines that such additional representatives will further aid the
visit.

(ii) If there is no employee representative, or if the consultant
is unable with reasonable certainty to determine who is such a
representative, or if the employee representative declines the offer to
participate, the consultant must confer with a reasonable number of
employees concerning matters of occupational safety and health.

(iii) The consultant is authorized to deny the right to accompany
under this section to any person whose conduct interferes with the
orderly conduct of the visit.

(d) Opening and closing conferences. (1) The consultant will
encourage a joint opening conference with employer and employee
representatives. If there is an objection to a joint conference, the
consultant will conduct separate conferences with employer and employee
representatives. The consultant must inform affected employees, with
whom he confers, of the purpose of the consultation visit.

(2) In addition to the requirements of paragraph (c) of this
section, the consultant will, in the opening conference, explain to the
employer the relationship between onsite consultation and OSHA
enforcement activity, explain the obligation to protect employees in
the event that certain hazardous conditions are identified, and
emphasize the employer's obligation to post the List of Hazards
accompanying the consultant's written report as described in paragraph
(e)(8) of this section.

(3) At the conclusion of the consultation visit, the consultant
will conduct a closing conference with employer and employee
representatives, jointly or separately. The consultant will describe
hazards identified during the visit and other pertinent issues related
to employee safety and health.

(e) * * *

(7) At the time the consultant determines that a serious hazard
exists, the consultant will assist the employer to develop a specific
plan to correct the hazard, affording the employer a reasonable period
of time to complete the necessary action. The state must provide, upon
request from the employer within 15 working days of receipt of the
consultant's report, a prompt opportunity for an informal discussion
with the consultation manager regarding the period of time established
for the correction of a hazard or any other substantive finding of the
consultant.

(8) As a condition for receiving the consultation service, the
employer must agree to post the List of Hazards accompanying the
consultant's written report, and to notify affected employees when
hazards are corrected. When received, the List of Hazards must be
posted, unedited, in a prominent place where it is readily observable
by all affected employees for 3 working days, or until the hazards are
corrected, whichever is later. A copy of the List of Hazards must be
made available to the employee representative who participates in the
visit. In addition, the employer must agree to make information on the
corrective actions proposed by the consultant, as well as other-than-
serious hazards identified, available at the worksite for review by
affected employees or the employee representative. OSHA will not
schedule a compliance inspection in response to a complaint based upon
a posted List of Hazards unless the employer fails to meet his
obligations under paragraph (f) of this section, or fails to provide
interim protection for exposed employees.

(f) * * *

(2) An employer must also take the necessary action in accordance
with the plan developed under paragraph (e)(7) of this section to
eliminate or control employee exposure to any identified serious
hazard, and meet the posting requirements of paragraph (e)(8) of this
section. In order to demonstrate that the necessary action is being
taken, an employer may be required to submit periodic reports, permit a
follow-up visit, or take similar action that achieves the same end.

* * * * *

(g) Written report. (1) * * *

(2) Because the consultant's written report contains information
considered confidential, and because disclosure of such reports would
adversely affect the operation of the OSHA consultation program, the
state shall not disclose the consultant's written report except to the
employer for whom it was prepared and as provided for in
§ 1908.7(a)(3). The state may also disclose information contained in
the consultant's written report to the extent required by 29 CFR
1910.1020 or other applicable OSHA standards or regulations.

(h) Confidentiality. (1) * * *

(2) Disclosure of consultation program information which identifies
employers who have requested the services of a consultant would
adversely affect the operation of the OSHA consultation program as well
as breach the confidentiality of commercial information not customarily
disclosed by the employer. Accordingly, the state shall keep such
information confidential. The state shall provide consultation program
information requested by OSHA, including information which identifies
employers who have requested consultation services. OSHA may use such
information to administer the consultation program and to evaluate
state and federal performance under that program, but shall, to the
maximum extent permitted by law, treat information which identifies
specific employers as exempt from public disclosure.

(3) The identity of employers requesting onsite consultation, as
well as the file of the consultant's visit, shall not be provided to
OSHA for use in any compliance activity, except as provided for in
§ 1908.6(f)(1) (failure to eliminate imminent danger,)
§ 1908.6(f)(4) (failure to eliminate serious hazards,) paragraph
(b)(1) of this section (inspection deferral) and paragraph (b)(4) of
this section (recognition and exemption program).

(b) Effect upon scheduling. (1) An onsite consultative visit
already in progress will have priority over OSHA compliance inspections
except as provided in paragraph (b)(2) of this section. The consultant
and the employer shall notify the compliance officer of the visit in
progress and request delay of the inspection until after the visit is
completed. An onsite consultative visit shall be considered "in
progress" in relation to the working conditions, hazards, or
situations covered by the visit from the beginning of the opening
conference through the end of the correction due dates and any
extensions thereof. OSHA may, in exercising its authority to schedule
compliance inspections, assign a lower priority to worksites where
consultation visits are scheduled.

* * * * *

(4) The recognition and exemption program operated by the OSHA
consultation projects provide incentives and support to smaller, high-
hazard employers to work with their employees to develop, implement,
and continuously improve the effectiveness of their workplace safety
and health management system.

(i) Programmed Inspection Schedule. (A) When an employer requests
participation in a recognition and exemption program, and undergoes a
consultative visit covering all conditions and operations in the place
of employment related to occupational safety and health; corrects all
hazards that were identified during the course of the consultative
visit within established time frames; has began to implement all the
elements of an effective safety and health program; and agrees to
request a consultative visit if major changes in working conditions or
work processes occur which may introduce new hazards, OSHA's Programmed
Inspections at that particular site may be deferred while the employer
is working to achieve recognition and exemption status.

(B) Employers who meet all the requirements for recognition and
exemption will have the names of their establishments removed from
OSHA's Programmed Inspection Schedule for a period of not less than one
year. The exemption period will extend from the date of issuance by the
Regional Office of the certificate of recognition.

(ii) Inspections. OSHA will continue to make inspections in the
following categories at sites that achieved recognition status and have
been granted exemption from OSHA's Programmed Inspection Schedule; and
at sites granted inspection deferrals as provided for under paragraph
(b)(4)(i)(A) of this section:

(A) Imminent danger.

(B) Fatality/Catastrophe.

(C) Formal Complaints.

(5) When an employer requests consideration for participation in
the recognition and exemption program under paragraph (b)(4) of this
section, the provisions of § 1908.6(e)(7), (e)(8), (f)(3), and
(f)(5) shall apply to other-than-serious hazards as well as serious
hazards.

(c) * * *

(3) In the event of a subsequent inspection, the employer is not
required to inform the compliance officer of the prior visit. The
employer is not required to provide a copy of the state consultant's
written report to the compliance officer, except to the extent that
disclosure of information contained in the report is required by 29 CFR
1910.1020 or other applicable OSHA standard or regulation. If, during a
subsequent enforcement investigation, OSHA independently determines
there is reason to believe that the employer: failed to correct serious
hazards identified during the course of a consultation visit; created
the same hazard again; or made false statements to the state or OSHA in
connection with participation in the consultation program, OSHA may
exercise its authority to obtain the consultation report.

* * * * *

Note: The following attachment will not appear in the Code of
Federal Regulations.

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